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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This case is before the Authority on a negotiability appeal filed by
the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute), and concerns the negotiability of one
provision disapproved by the Agency head under section 7114(c) of the
Statute.(2) For the reasons that follow, we
find that the provision, which requires that disciplinary and adverse actions
be based on just cause and be consistently applied, is negotiable as an
appropriate arrangement under section 7106(b)(3) of the Statute.

II. Provision

The parties agree that discipline and adverse actions will be
based on just cause and be consistently applied equitably and promote the
efficiency of the Federal Service. In some instances, counselling or other
informal means may be used to correct the situation. Supervisor's most
effective means of maintaining discipline is through the promotion of
cooperation; of sustained good working relationships; and of self-discipline
and reasonable performance that is inherent in the Federal workforce. [Only the
underlined sentence is in dispute.]

III. Positions of the Parties

A. Agency

The Agency argues that by requiring the equitable
application of all disciplinary and adverse actions, the provision would impose
a substantive limitation on management's right to discipline in accordance with
section 7106(a)(2)(A) of the Statute. Contending that, in effect, the provision
would require management to impose the same penalty for all employees who
commit the same offense, regardless of mitigating circumstances, the Agency
claims that the provision would not allow management the flexibility to
consider a range of penalties. The Agency asserts that, under Authority
precedent, an agency cannot be compelled to bargain over a table of
penalties.

The Agency also argues that the Union has not met its burden of
establishing a record that is sufficient for the Authority to make a
determination as to whether the provision constitutes an appropriate
arrangement under section 7106(b)(3) of the Statute. In the alternative, the
Agency cites Authority precedent to support its assertion that the provision
does not constitute an appropriate arrangement because it excessively
interferes with management's right to discipline.

B. Union

The Union contends that the provision requires that "all disciplinary
and adverse actions should be consistently applied and with equality." Petition
at 3; Response at 4. The Union further explains that because the provision
requires that discipline be imposed for such cause as will promote the
efficiency of the Federal service, the Agency could take into account
"any viable extenuating and mitigating circumstances" and apply all of
the factors set forth in Douglas v. Veterans Administration, 5 MSPR 313
(1981), in taking disciplinary action. Response at 5 (emphasis in original). It
points to the same or similar language in agreements dating back to 1971 and
argues that the provision in this case should be similarly negotiable.

The Union does not deny that the provision affects the Agency's right
to discipline, but asserts that it constitutes an appropriate arrangement under
section 7106(b)(3) of the Statute. In this regard, the Union contends that the
provision was intended as an arrangement for employees adversely affected by
the Agency's "heavy handed approaches to the imposition of discipline[,]" and
provides two examples of bargaining unit employees whose discipline was
ultimately found by arbitrators to have been imposed without just cause.
Response at 4. The Union stresses that under the provision management can take
into account "viable extenuating and mitigating
circumstances . . . ." Id. at 5.

IV. Analysis and Conclusions

Provisions that restrict the range of management action pursuant to a
right under section 7106 of the Statute constitute limitations on the exercise
of that right and for that reason have been held to directly interfere with the
exercise of that right. National Treasury Employees Union and U.S.
Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696,
718-19 (1992). As relevant to this case, restrictions on an agency's ability to
choose the specific penalty that it will impose in a disciplinary action
directly interfere with management's right to discipline employees under
section 7106(a)(2)(A). American Federation of Government Employees, AFL-CIO,
Local 3732 and U.S. Department of Transportation, United States Merchant Marine
Academy, Kings Point, New York, 39 FLRA 187, 198 (1991) (Merchant Marine
Academy). Therefore, the Authority has held that a provision that requires
an agency to apply "consistent" penalties for particular offenses limits the
agency's discretion to take disciplinary action. Id. at 198-99
(provision required that disciplinary or adverse actions would be taken only
for just and sufficient cause as would promote the efficiency of the service
and would be administered in a constructive, progressive, consistent,
reasonable and timely manner); cf.American Federation of Government
Employees, Local 1770 and U.S. Department of the Army Headquarters, XVII
Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA
903, 906-07 (1990) (Fort Bragg) (proposal required that management
consider only like offenses when determining whether an employee's actions
constituted first, second, or third offenses).

The Union acknowledges its intention that under the provision
management would be required to apply all disciplinary and adverse actions
"with equality." Petition at 3; Response at 4. Thus, the provision in this
case is similar in effect to the one at issue in Merchant Marine
Academy. As in that case, the provision limits the Agency's ability to take
at least some actions it deems appropriate even though it permits management
some flexibility in determining specific disciplinary measures. Accordingly, as
in that case, we conclude that the provision impermissibly affects management's
right to discipline.

In determining whether a provision constitutes an appropriate
arrangement, the Authority initially determines whether the provision is
intended to be an arrangement for employees adversely affected by the exercise
of a management right. SeeNational Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33
(1986) (KANG). The purported arrangement must be "tailored" to
compensate or benefit employees suffering adverse effects flowing from the
exercise of management's rights. See, forexample,
International Federation of Professional and Technical Engineers, Local 3
and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia,
Pennsylvania, 51 FLRA 451, 454 (1995). If the provision is such an
arrangement, the Authority then determines whether the arrangement is
appropriate or inappropriate because it excessively interferes with
management's rights. KANG, 21 FLRA at 31-33.

Contrary to the Agency's contention, there is a sufficient record to
determine whether the provision in this case constitutes an appropriate
arrangement. Based on the plain wording of the provision and the Union's stated
intent, the provision applies only to those employees against whom disciplinary
and adverse actions are taken. In general, a provision that requires an agency
to administer discipline in a fair or consistent manner is intended to benefit
employees adversely affected by the exercise of management's right to
discipline. Cf.American Federation of Government Employees, Local
1426 and U.S. Department of the Army, Fort Sheridan, Illinois, 45 FLRA 867,
875 (1992) (Fort Sheridan) (proposal requiring agency to administer
discipline in progressive manner found to be arrangement). In addition, in
support of its assertion that the provision would protect employees from
"arbitrary and capricious disciplinary cases," the Union provided specific
examples of bargaining unit employees whose discipline was overturned by
arbitrators because it had not been imposed for just cause. Response at 4.
Thus, as it is tailored to apply to employees who are adversely affected by
management's right to discipline under section 7106(a)(2)(A), the provision is
an arrangement and satisfies the first prong of the KANG analysis.

With regard to the second prong of the KANG analysis, the Union
states that the provision is designed to prevent "arbitrary [and] capricious
decision making." Response at 4. However, the Union also states that it is not
meant to "force[] management to impose a table of penalties that applies the
same penalty under all circumstances." Id. at 4-5. There is nothing
in the language of the provision that is inconsistent with this intended
effect. The provision merely requires that, insofar as it will promote the
efficiency of the Federal Service, the Agency must apply discipline "equitably"
and based on just cause. In addition, although the provision requires that the
Agency "consistently" apply discipline in an equitable manner, it is silent
with regard to specific penalties or to a progressive system for determining
disciplinary actions. Accordingly, as it is consistent with the plain language
of the provision, we adopt the Union's interpretation. SeeNational
Education Association, Overseas Education Association, Laurel Bay Teachers
Association and U.S. Department of Defense, Department of Defense Domestic
Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools,
Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996). Moreover, as the
provision does not mandate a progressive disciplinary system, it is
distinguishable from proposals and provisions the Authority has found to
excessively interfere with management's right to discipline because they would
have required the use of such systems. E.g., Fort Sheridan,
45 FLRA at 875; Merchant Marine Academy, 39 FLRA at 199.

Further, the Union specifically affirms that, under the provision, the
Agency would continue to apply the Douglas factors and to take into
account all extenuating and mitigating factors when imposing discipline. As the
Union's statement of intent is consistent with the language of the provision,
we adopt the Union's interpretation in this respect as well. Given the Union's
assurances, there is nothing in the record to support the Agency's arguments
that the provision will impinge on its right to consider a range of penalties
or that it in some manner imposes on management a table of penalties.
Accordingly, this provision is distinguishable from proposals and provisions
found by the Authority to excessively interfere with management's right to
discipline because they prevent management from considering all factors when
determining appropriate discipline. E.g., Fort Bragg, 34 FLRA at
907-08; International Plate Printers, Die Stampers and Engravers Union of
North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of
Engraving and Printing, Washington, D.C., 25 FLRA 113, 133-34 (1987)
(Bureau of Engraving and Printing) (Provision 22(a), which limited the
disciplinary measures the agency could take, excessively interfered with
agency's right to discipline).

Analyzing the provision in this case under KANG, we find that
the benefits to employees in receiving consistent and equitable treatment
outweigh the minimal burdens on management of complying with the provision.
Specifically, although the conduct giving rise to disciplinary and adverse
actions may be within the employee's control, the employee has no control over
management's imposition of inconsistent or inequitable treatment. In addition
to the adverse effects employees suffer from the imposition of discipline, the
effects of inconsistent or inequitable discipline are particularly severe. For
example, the Union describes an award in which an arbitrator found that the
Agency had no just cause for its suspension of an employee who had 20 years of
service and no prior disciplinary record. In contrast, the provision expressly
retains the Agency's ability to act in a manner that "promote[s] the efficiency
of the Federal Service" and, as explained by the Union, permits the Agency to
take into account all the circumstances surrounding the disciplinary or adverse
action. Thus, this provision is similar to Provision 22(b) in Bureau of
Engraving and Printing, which the Authority found negotiable as an
appropriate arrangement. 25 FLRA at 134. That provision required the
agency to effect discipline "in a prompt, fair and equitable manner; only for
specific cause; and with the employees' rights fully protected." Id. at
130. In addition, it permitted the agency to consider all the factors involved
in the offense, including mitigating circumstances and the employee's previous
disciplinary record. In contrast, the Authority held, as noted above, that
Provision 22(a) in Bureau of Engraving and Printing was not an
appropriate arrangement because it severely limited the agency's discretion to
impose appropriate discipline.

As the Authority found with regard to Provision 22(b) in Bureau of
Engraving and Printing, the provision in this case permits the Agency to
retain the ultimate right to determine which employees will be disciplined and
what discipline will be imposed. Accordingly, we find that the provision does
not excessively interfere with management's right to discipline and conclude
that it is negotiable as an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute.

V. Order

The Agency is directed to rescind its disapproval of the
provision.(3)

Member Armendariz concurring:

I write separately because, applying the standard set forth in my
dissent in National Treasury Employees Union, Chapter 243 and U.S.
Department of Commerce, Patent and Trademark Office, 49 FLRA 176,
209-14 (1994) (PTO), I conclude that the provision constitutes an
arrangement within the meaning of section 7106(b)(3) of the Statute. As
explained by the Union, the provision would benefit employees by protecting
them against excessive or arbitrary disciplinary penalties. In particular,
according to the Union, by incorporating the Douglas factors(*) and other extenuating and
mitigating factors, the provision requires that discipline be imposed taking
into account the varied circumstances of each case. I find that the Union's
explanation of the provision is consistent with the wording thereof and I adopt
it for purposes of this opinion.

Interpreted in this manner, the provision applies only after management
has decided to take a disciplinary or an adverse action against an employee and
provides benefits only to the employees who are subject to those actions.
Specifically, the provision limits the penalty that will be imposed on those
employees. Thus, the provision is tailored to benefit only those employees who
will suffer an identifiable adverse effect as a result of the exercise of
management's right to discipline under section 7106(a)(2)(A) of the Statute. I
conclude, therefore, that the provision constitutes an arrangement within the
meaning of section 7106(b)(3). See my dissent in PTO at 211.

I also agree that, interpreted in this manner, the provision is an
appropriate arrangement within the meaning of section 7106(b)(3). The provision
allows management flexibility in the determination of the appropriate penalty
based on the circumstances of each individual case. The provision also protects
employees against excessive or arbitrary disciplinary penalties. I find that
the burden imposed on management's ability to discipline by the limitation on
penalties is outweighed by the benefit to employees of the protection afforded
by that limitation. I conclude, therefore, that the provision does not
excessively interfere with management's right to discipline and is within the
Agency's duty to bargain under section 7106(b)(3) of the Statute.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

Authority's Footnotes Follow:

1. The separate concurring opinion of
Member Armendariz appears at the end of this decision.

2. The Agency withdrew its allegation
of nonnegotiability as to a second provision. Accordingly, that provision will
not be considered in this decision.

3. In finding the provision to be
within the duty to bargain, we make no judgment as to its merits.

Concurring Opinion Footnote Follows:

*/ The phrase "Douglas factors" refers
to guidelines established by the Merit Systems Protection Board in Douglas
v. Veterans Administration, 5 MSPR 280 (1981) that govern the
appropriateness of penalties in actions covered by 5 U.S.C.
§§ 4303 and 7512. E.g., U.S. Department of the Army,
III Corps and Fort Hood, Fort Hood, Texas and American Federation of Government
Employees, Local 1920, 46 FLRA 609, 613 (1992).